Under the current policy, a pregnant worker would be deported either after the sixth month of her pregnancy if she is not currently employed, or once she gives birth if she is employed. Justice Jubran: The regulation “isn’t becoming of a democratic state.”
By Elizabeth Tsurkov
In a landmark ruling, the Israeli High Court of Justice declared last week that the Israeli government’s “pregnant worker regulation” is “unconstitutional”, “disproportional and therefore unreasonable” and “must be abolished”. The regulation entails deporting female migrant workers once they have given birth and allowing their re-entry only if they leave their child behind.
The policy was appealed by several human rights organizations in 2005, but the ruling was pending until last Wednesday. The ruling, the last one to handed out by Justice Procaccia before her retirement, was extremely critical of the government policy. This harsh criticism was supported by fellow judges Justice Elyakim Rubinstein and Justice Salim Jubran, who went as far as stating that the regulation “isn’t becoming of a democratic state.”
The regulation in question, set in place by the Israeli government, is intended to decrease the likelihood of women migrant workers staying in Israel after the expiration of their work visa. The state of Israel prevents migrant workers from entering Israel if they have relatives from their immediate family in Israel, stating that this would increase the chances of the workers overstaying illegally (meaning, the worker would have no reason to go back if they have a family in Israel or start one).
Under the regulation, the pregnant worker would be deported either after the sixth month of her pregnancy if she is not currently employed, or once she gives birth if she is employed. Once the worker is out of Israel, she has two choices: She can either apply for a work permit for two more years on employment and return to Israel without her child in 90 days, or remain in her home country.
Sigal Rosen of Hotline for Migrant Workers (HMW) explains that in practice, the only way pregnant migrant workers could return to Israel is if their employer was willing to wait for her for three months, since recruitment agencies prefer to hire new workers (who would pay the exorbitant recruitment fee) instead of finding a new employer for a worker with a valid work visa.
There have been several cases of women leaving Israel to give birth, expecting their employer to want them to return. However, during the three months, the employer got used to the substitute caregiver and the worker was not able to return, even if she was willing to leave her child behind. In other cases, the Ministry of Interior prevented the new mother from returning and the employer didn’t fight to force the Ministry to let her come back.
The human rights organizations appealing this policy said that it violates the right to have a family as well as the worker’s right to earn a living, by forcing her to choose between raising their child and making a living in Israel. The Court accepted this view, stating that forcing women to make this choice “involves serious infringement upon the workers’ constitutional rights under Israeli law.”
The High Court verdict explained the decision to strike down the regulation, stating: “The [pregnant] migrant worker regulation includes considerable harm to the constitutional rights of the migrant worker. It infringes upon her right to become a parent and have a family, and her economic expectations; it does not conform with the protection the Israeli law offers to workers who have given birth or are pregnant, and with the prohibition on discriminating workers based on pregnancy, childbirth and parenthood as part of the right to equality in employment; it contradicts the protection offered to migrant workers in the international conventions.”
In reaction to the verdict, the Hotline for Migrant Workers (HMW), one of the human rights organizations appealing the regulation stated:
“We praise the High Court of Justice ruling that recognizes the right of caregivers to parenthood. We hope this ruling will lead to an increase of migrant workers’ rights in Israel, a reduction in the number of workers staying illegally in Israel and a decrease in the number of workers deported from the country before they are able to repay the enormous sums of money they’ve loaned in order to get to Israel.”
Currently, hundreds of undocumented female migrant workers and their children who were born in Israel are set to be deported from the country. Most of these workers lost their legal status as a result of the “pregnant migrant worker regulation” that was struck down by this Court ruling. The verdict could be used by women who have been in Israel for less than four years and have lost their legal status as a result of having a child to regain their legal status. Migrants’ rights organizations fear that the Immigration Authority would delay giving those women back their legal status until four years have passed since the worker came to Israel, at which point she will not be covered by the ruling.
The ruling stated that Israel must allow workers to complete their employment period (up to 63 months) with their child by their side, if their employer is willing to continue employing them or if they find a new employer of caregivers. It remains to be seen whether the Immigration Authority in the Ministry of Interior will follow the High Court verdict.
Despite the fact that High Court rulings must be obeyed by the State, an examination in 2010 showed that nine High Court rulings are not being implemented by the State, the most famous of them is the 2007 decision to relocate the Separation Barrier near the Bil’in village. Sigal Rosen of HMW expressed hope that “the Immigration Authority will make an exception to its habit of ignoring High Court rulings and honor this verdict.”